Boundaries – Transfer – Interpretation – Right of way – Respondent purchasing plots of land at auction – Right of way included in transfer subject to exception of boundary structure shown on annexed plan and marked with “T” – No such structure in fact so marked – Position of boundary – Extent of right of way – Whether installation of electronic gates a substantial interference with right of way – Appeal allowed in part
In 2000, the respondent purchased two lots of farmland at auction from the same vendor. Both came with a right of way over the vendor’s retained land, for agricultural purposes only, over a metalled roadway leading from the public highway. The right of way was stated to be over the roadway as marked on an annexed plan. In respect of the first plot, the right of way was subject to an exception of “the whole of the boundary structure shown on the annexed plan and marked “T” outwards on the north-western boundary of the property”, although no T mark in fact appeared on the plan.
Shortly after his purchase, the respondent removed part of a white fence near the entrance to the roadway, at the highway end, so that vehicles could access the first plot at that point rather than driving up the whole length of the roadway. The appellant, which had acquired the vendor’s retained land, later installed a new fence, with electronic gates, at the highway entrance. The gates could be opened only by the use of a fob or a four-digit code. While the appellant offered to give both to the respondent, the respondent refused them and claimed that the electronic gates were a substantial obstruction to the reasonable use of the right of way. He also claimed that the new fence and one of the gate piers trespassed on his land. In proceedings between the parties, issues arose as to the location of the boundary between the parties’ respective properties and the extent of the respondent’s right of way. The parties instructed a single joint expert, who produced a large-scale plan of the relevant area.
The judge rejected the appellant’s submission that the boundary was defined by the white fence, which had existed as a boundary structure at the time of the 2000 transfer. He held that the exception in the transfer was inoperative, since the indications as to its subject matter could not be given effect where neither any boundary structure nor any T marks were marked on the annexed plan. He concluded that: (i) the right of way was exercisable over the whole metalled width of the roadway, disregarding the expert’s plan and measurements, which were not of assistance in that regard; (ii) the edge of the metalled surface was the boundary of the first lot; (iii) the respondent was not limited to passing along the whole length of the roadway in order to access that lot but could gain access at any point or points of his choice; (iv) the white fence belonged to the respondent, who was entitled to remove it; (v) the southern gate pier also stood on the respondent’s land, and was a trespass; and (vi) the electronic gates were a substantial interference with the exercise of the right of way and should be removed. The appellant appealed.
Held: The appeal was allowed in part.
(1) The 2000 transfer had to be construed as a whole and in the light of all relevant surrounding circumstances, including the physical condition of the relevant land at the time. Although the plans filed on registration of title were relatively detailed, they showed only general boundaries and did not provide the answer to any issue as to the exact position of any boundary. However, the judge had erred in finding that no effect could be given to the exception. The white fence was the only possible candidate to be a boundary structure. Given the small scale of the auction plan, nothing turned on the fact that the white fence was not shown on the plan separately from the edge of the roadway. The reference to a boundary structure “shown on the annexed plan and marked “T” outwards on the north-western boundary of the Property” did not contain two distinct requirements which had to be satisfied. Had there been a T mark on the plan, as contemplated by the terms of the clause, it would have been sufficient to identify the white fence, as it then existed, as the boundary structure in question. The omission of the T mark was a deficiency resulting from an error, which could be corrected as a matter of construction. Since there was, at the relevant date, only one boundary structure on the relevant boundary, it was clear that the omission was a T mark pointing away from the first lot on the north-western boundary of that lot. If such a T mark were inserted, the clause would have the effect that the vendor, and thereafter the appellant, retained ownership of the white fence by the effect of the exception.
It followed from that conclusion that: (i) the gate pier was not on the respondent’s land and so was not a trespass; (ii) the respondent was not entitled to take down any part of the fence so as to open up a new access to his land; (iii) the respondent was entitled to have access between the first lot and the roadway at any point to the east of the end of the fence as it stood in 2000, but not at any point further west; and (iv) the appellant was entitled to require the respondent to reinstate the gap in the fence which he made near the entrance so that he could not have access to his land at that point.
(2) The respondent was entitled to a declaration that the electronic gates were a substantia interference with his right of way. The judge had correctly compared the position with the electronic gates in place with the previous position where there were no gates and had been entitled to conclude that the elect5onic gates substantially interfered with the use of the right of way.
(3) In defining the extent of the right of way, the judge had erred in rejecting the evidence of the joint expert. Where any discrepancy between the plan and the position on the ground had not been the subject of a challenge by either party through the appropriate procedure of questions put to the expert in writing under CPR 35.6, it was not open to the respondent to contend that the plan was not reliable in that or any other given respect. The judge had therefore erred in discarding that plan as a suitable method of defining the physical extent of the metalled roadway as it stood at the relevant time. The judge’s order should therefore have referred to the expert’s rather than, in general terms, to the position on the ground.
Charles Harpum and Stephen Taylor (instructed by Frisby & Small, of Leicester) appeared for the appellant; Philip Sissons (instructed by DBS Andersons, of Leicester) appeared for the respondent.
Sally Dobson, barrister
